Jeffrey Kaplanv.Faulding Healthcare (IP) Holdings, Inc.

Trademark Trial and Appeal Board

Jun 21, 2021

92060205 (T.T.A.B. Jun. 21, 2021)

This Opinion is Not a Precedent of the TTAB Hearing: March 23, 2021 Mailed: June 21, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Jeffrey Kaplan v. Faulding Healthcare (IP) Holdings, Inc. _____ Cancellation No. 92060205 _____ Adam S. Goldman of The Concept Law Group PA for Jeffrey Kaplan Lori J. Shyavitz of McCarter & English LLP for Faulding Healthcare (IP) Holdings, Inc. _____ Before Cataldo, Kuczma and English, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: Faulding Healthcare (IP) Holdings, Inc. (“Respondent”) owns registrations on the Principal Register for the mark SEA & SKI, in typed format, for:1 1 A registration in typed format is the legal equivalent of a standard character mark. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (explaining that in 2003 there was a non-substantive change in nomenclature from a “typed mark” to a “standard character mark”). Petitioner also petitioned to cancel Registration No. 845518 for the mark SEA & SKI, in typed format, for “beach towels and footwear.” Respondent did not renew the registration and it was cancelled by operation of law on March 6, 2018, although the Office did not take the ministerial act of cancelling the registration until August 13, 2020. See Land O Lakes, Inc. v. Hugunin, 88 USPQ2d 1957, 1959 (TTAB 2008) (“[T]he date of expiration of [a] registration is Cancellation No. 92060205 - 2 -  “suntan lotions”2 in International Class 3; and  “suntan lotion; suntan oil; suntan cream; sunblock lotion; sunblock cream; self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light; lotion for use as a relief from, and preventative for, chapping, skin irritations and diaper rash; after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light; and lip balms”3 in International Class 3. In his amended petition to cancel, Petitioner alleges ownership of two pending intent-to-use applications for the standard character mark SEA & SKI for “sun block preparations” (Serial No. 86394108) and “beach towels” (Serial No. 86413826) that not dependent on the date the Office took the ministerial function of entering the cancellation into the USPTO database.”). On October 27, 2020, the Board issued an order deeming Respondent’s failure to renew the registration the equivalent of a voluntary request for cancellation without Petitioner’s written consent and granted the petition to cancel with respect to Registration No. 845518. 158 TTABVUE. Accordingly, the parties’ arguments concerning Registration No. 845518 are moot and have been given no consideration. 2 Registration No. 841768; issued January 2, 1968; twice renewed. 3 Registration No. 2236642; issued April 6, 1999; twice renewed. Cancellation No. 92060205 - 3 - have been refused registration based on a likelihood of confusion with the mark in Respondent’s involved registrations.4 As grounds for cancellation, Petitioner alleges that Respondent has abandoned the SEA & SKI mark for the goods identified in the involved registrations because Respondent has not used the mark for such goods “for at least the preceeding [sic] three (3) years” and has no intent to resume use.5 In its answer, Respondent admits that: (1) “Petitioner has applied for the referenced marks” pleaded as “SEA & SKI - Serial No. 86394108 for Sun block preparations and SEA & SKI - Serial No. 86413826 for Beach Towels”6; (2) “Petitioner’s two trademark applications are currently on suspension awaiting the outcome of this cancellation proceeding”;7 and (3) Respondent’s “Registrations are identical or nearly identical and cover the same or similar classes as the trademarks applied for by Petitioner such that a denial of Petitioner’s applications is required.”8 The case is fully briefed.9 An oral hearing was held on March 23, 2021. For the reasons explained below, the petition for cancellation is denied as to Registration No. 4 Amended Petition, 13 TTABVUE 34-35, ¶¶ 3-4 and 7. 5 Id. at 36, ¶¶ 11-13. Petitioner also alleged fraud, but did not pursue fraud in his brief so we deem Petitioner’s fraud claim forfeited and have given it no consideration. See, e.g., Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed Cir. 2014); Swatch AG v. M.Z. Berger & Co., 108 USPQ2d 1463, 1465 n.3 (TTAB 2013), aff’d 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015). 6 13 TTABVUE 34, ¶ 3; 16 TTABVUE 2, ¶ 3. 7 13 TTABVUE 35, ¶ 4; 16 TTABVUE 2, ¶ 4; 8 13 TTABVUE 35, ¶ 7; 16 TTABVUE 3, ¶ 7. Respondent also pleaded “affirmative defenses” pertinent to Petitioner’s fraud claim, which Petitioner has forfeited. See n.5 above. 9 On May 26, 2020, Respondent filed a stipulated motion for leave to file corrected versions of its brief and evidentiary objections. 145 TTABVUE. The Board granted the stipulation on July 22, 2020. 155 TTABVUE. Accordingly, we have considered only the corrected versions Cancellation No. 92060205 - 4 - 841768 and granted in part and denied in part with respect to Registration No. 2236642. I. The Record and Evidentiary Objections Petitioner’s Motion for Leave to File a Supplemental Notice of Reliance On June 5, 2020, after Respondent filed its brief in the case, Petitioner filed a motion seeking leave “to file a Supplemental Notice of Reliance to enter into the record a portion of Exhibit 3 [consisting of 4 emails] to the April 20, 2017 [discovery] deposition of Mr. Kaplan, which deposition (but not Exhibit 3) has been made of record by [Respondent.]”10 Because the motion was filed so late in the proceeding, the Board deferred its determination until final decision.11 During its trial period, Respondent timely introduced portions of the April 20, 2017 discovery deposition of Petitioner.12 Petitioner argues that “while reviewing the arguments made and evidence cited by [Respondent] in its Response Brief, [he] realized that [Respondent] had selectively omitted Exhibit 3 to Mr. Kaplan’s deposition … and specifically, the four emails referenced in the [deposition] excerpts” Respondent introduced into the record; that the “omission results in an incomplete and potentially misleading presentation of the evidence in this case, as the missing of Respondent’s brief and evidentiary objections at 145 TTABVUE 7-58, 61-75 (redacted) and 146 TTABVUE (confidential). 10 Petitioner’s Motion, 147 TTABVUE. 11 July 22, 2020 Order, 155 TTABVUE. 12 Respondent’s Second Notice of Reliance, 90 TTABVUE (redacted), 91 TTABVUE (confidential). Cancellation No. 92060205 - 5 - emails are directly relevant, necessary, and support the testimony offered by [Respondent]”; and that “due to an inadvertent oversight, [Petitioner] had not previously noticed that these specific emails were missing from [Respondent’s] Notice of Reliance.”13 To the extent Petitioner implies that Respondent was required to introduce the emails because the portions of the deposition Respondent introduced specifically refer to the emails, we disagree. Under Trademark Rule 2.120(k), 37 C.F.R. § 2.120(k), an adverse party is permitted to choose the portions of a discovery deposition on which it seeks to rely. The rule further provides: “If only part of a discovery deposition is submitted and made part of the record by a party, an adverse party may introduce under a notice of reliance any other part of the deposition which should in fairness be considered so as to make not misleading what was offered by the submitting party.” Trademark Rule 2.120(k)(4). Accordingly, if Petitioner believed the emails “should in fairness be considered,” his recourse was to submit the emails under a notice of reliance during his rebuttal trial period, which closed on January 21, 2020.14 Because Petitioner filed his motion for “leave” to file a supplemental notice of reliance after the close of his rebuttal trial period Petitioner’s motion is, in substance, a motion to reopen. Accordingly, we must consider whether there is excusable neglect 13 Petitioner’s June 5, 2020 Motion, 147 TTABVUE 2-3. 14 Board’s September 30, 2019 Order, 112 TTABVUE; Petitioner’s November 7, 2019 Consented Motion, 116 TTABVUE; Board’s July 22, 2020 Order, 155 TTABVUE; Trademark Rule 2.196, 37 C.F.R. § 2.196. Cancellation No. 92060205 - 6 - to reopen Petitioner’s rebuttal trial period.15 Baron Philippe de Rothschild S.A. v. Styl-Rite Optical Mfg. Co., 55 USPQ2d 1848, 1852 (TTAB 2000) (“Pursuant to Fed. R. Civ. P. 6(b)(2), the requisite showing for reopening an expired period is that of excusable neglect.”). The determination of whether a party’s neglect is excusable is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission” including: (1) the danger of prejudice to the non-moving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the moving party; and (4) whether the moving party has acted in good faith. Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Baron Philippe, 55 USPQ2d at 1852. Here, there is no evidence that Petitioner acted in good or bad faith in moving to reopen his rebuttal trial period. Nor would Respondent be prejudiced if the emails were admitted into evidence. Respondent is aware of the contents of the emails and the portions of the discovery deposition Respondent introduced into evidence include information regarding to whom and when the emails were sent.16 But Petitioner significantly delayed in moving to reopen more than four months after the close of his 15 Petitioner further argues that his supplemental notice of reliance should be accepted under that portion of Trademark Rule 2.120(k)(2) providing that where “the motion is based upon a claim that such exceptional circumstances exist as to make it desirable, in the interest of justice, to allow the deposition to be used … the motion shall be filed promptly after the circumstances claimed to justify use of the deposition became known.” 147 TTABVUE 3. That language, however, is inapplicable because it concerns the introduction of a discovery deposition by a non-adverse party in the first instance, not an attempt to supplement the record with portions of a discovery deposition already introduced into evidence. 16 Petitioner’s Discovery Deposition, 92 TTABVUE 6, 59, 66-69, 85-86. Cancellation No. 92060205 - 7 - rebuttal period and only after Respondent filed its main brief in the case. In addition, it was wholly within Petitioner’s control to timely supplement the record with the emails during his rebuttal period. A cursory review of Respondent’s filing would have revealed that the emails were not included. Pumpkin Ltd. v. Seeds Corp., 43 USPQ2d 1582, 1587 (TTAB 1997) (counsel’s failure to properly docket deadline “was wholly within the reasonable control” of movant). Petitioner’s delay in seeking to reopen and the fact that it was within Petitioner’s reasonable control to timely file the emails during his rebuttal period outweigh any lack of prejudice to Respondent and the absence of any good or bad faith on the part of Petitioner in seeking to reopen. Accordingly, Petitioner’s motion to reopen is denied. As a practical matter, however, this determination is of little consequence because, as discussed above, the portions of the discovery deposition Respondent introduced include information regarding the omitted emails17 and Petitioner may rely on this evidence for any purpose permitted by the Federal Rules of Evidence. Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a); see also Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016). Respondent’s Objections Respondent has raised several objections to Petitioner’s evidence that we address in turn below.18 17 Petitioner’s Discovery Deposition, 92 TTABVUE 6, 59, 66-69, 85-86. 18 Respondent also objects that Petitioner relies on Respondent’s response to Interrogatory 2 in Petitioner’s first set of interrogatories, which is not in evidence. 145 TTABVUE 67. It is clear from the context of the citation, however, that Petitioner intended to cite to Cancellation No. 92060205 - 8 - First, Respondent seeks to exclude Exhibits B, C and E to Petitioner’s testimony affidavit, consisting of website printouts, on the ground that these documents were responsive to Respondent’s Document Request 19, but “portions” of the documents “were never produced.”19 Respondent, however, has not provided a copy of Document Request 19.20 Nor has Respondent provided those portions of Exhibits B, C and E that Petitioner did produce. Accordingly, we cannot assess the basis for Respondent’s objection. The objection therefore is overruled. Second, Respondent objects to Exhibit 2 to Petitioner’s rebuttal notice of reliance consisting of excerpts from Petitioner’s discovery deposition. Petitioner asserts that the excerpts “should be considered so as to make not misleading” those portions of Petitioner’s discovery deposition that Respondent introduced during its trial period.21 Respondent’s response to Interrogatory 2 in Petitioner’s second set of interrogatories. This evidence is in the record at 80 TTABVUE 43. Respondent further objects to Exhibit 1 to Petitioner’s rebuttal notice of reliance consisting of printouts from the USPTO’s databases related to registrations and applications owned by Pathfinder, Respondent’s sole owner (96 TTABVUE 5, ¶ 3), as well as Petitioner’s rebuttal affidavit testimony regarding prior cancellation proceedings in which Petitioner has been involved. 145 TTABVUE 67. We do not rely on these documents or testimony in reaching our decision so we need not address these objections. 19 Respondent’s Evidentiary Appendix, 145 TTABVUE 66. 20 Respondent’s evidentiary appendix states that Document Request 19 is attached as Exhibit 1, but no such exhibit is attached. Respondent also refers us to a copy of Document Request 19 attached to its motion to compel, filed October 5, 2016; however, exhibits to Respondent’s motion to compel are not part of the evidentiary appendix. Cf. Levi Strauss & Co. v. R. Josephs Sportswear Inc., 28 USPQ2d 1464, 1465 n.2 (TTAB 1993) (explaining that applicant’s motion for summary judgment and exhibits thereto, motion to dismiss, motion for reconsideration and motion to strike depositions formed part of the proceeding but were “part of the evidentiary record only to the extent that particular papers were made of the record in accordance with the Trademark Rules of Practice.”). Am. Meat Inst. v. Horace W. Longacre, Inc., 211 USPQ 712, 716 n.2 (TTAB 1981). 21 Petitioner’s Rebuttal Notice of Reliance, 119 TTABVUE 3. Cancellation No. 92060205 - 9 - Trademark Rule 2.120(k)(3) provides that “[i]f only part of a discovery deposition is submitted and made part of the record by a party, an adverse party may introduce under notice of reliance any other part of the deposition which should in fairness be considered so as to make not misleading what was offered by the submitting party.” We find that those portions of Petitioner’s discovery deposition that Respondent submitted are not misleading. The excerpts Petitioner seeks to introduce merely expand on those portions of the discovery deposition Respondent has introduced. This is not a sufficient basis for supplementing parts of the discovery deposition under Trademark Rule 2.120(k)(4). United Foods, Inc. v. United Air Lines Inc., 41 USPQ2d 1653, 1654, n.5 (TTAB 1995) (“[R]espondent argues, in essence, that the additional portions [of the deposition transcript] which it has designated are directly related to, and expand upon, the portions relied upon by petitioner. That, however, is not sufficient for purposes of [the Rule].”). Accordingly, Respondent’s objection to Exhibit 2 to Petitioner’s rebuttal notice of reliance is sustained and we have not considered this evidence.22 Third, Respondent objects on hearsay grounds to emails and website printouts attached as exhibits to Petitioner’s testimony affidavits. These objections are overruled because we consider the exhibits only for what they show on their face and not for the truth of their contents. 22 A few pages of the deposition transcript Petitioner specified were included in Respondent’s notice of reliance so these portions are of record and may be referred to by either party for any purpose permitted by the Federal Rules of Evidence. Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a); see also Nazon v. Ghiorse, 119 USPQ2d at 1181 n.6; United Foods, 41 USPQ2d at 1654, n.5. Cancellation No. 92060205 - 10 - Finally, Respondent objects to the following testimony of Petitioner on the grounds that Petitioner lacks personal knowledge or that the testimony is “speculative, unfounded, and unhelpful lay opinion testimony in the form of legal conclusions”:23 To my knowledge, which is informed from my research in 2014, and from the information provided by Registrant in this proceeding, other than the SEA & SKI lip balm products purportedly sold by Navajo through 2013, from 2010 through July 2016, Registrant did not manufacture, cause to be manufacture, distribute, offer to sell, or sell any SEA & SKI branded products.24 The brand was not being sold in commerce and … had been abandoned with no intent to resume use.25 We agree that the testimony consists of legal conclusions and factual determinations regarding Petitioner’s claim of abandonment. We will not substitute witness opinion for our evaluation of the facts or the legal claims before us. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010) (“We will not substitute the opinion of a witness … for our evaluation of the facts.”); cf: Alcatraz Media Inc., 107 USPQ2d at 1755 (opinion of expert witness cannot “serve as a substitute for the Board’s judgment on the legal claims before us”). Accordingly, Respondent’s objections to Petitioner’s testimony above are sustained. Confidentiality Both parties substantially over designated evidence as confidential. Petitioner explained that he “adhered to [Respondent’s] confidentiality designations” even 23 Respondent’s Evidentiary Appendix, 145 TTABVUE 72-73. 24 Petitioner’s Affidavit, 78 TTABVUE 4, ¶ 20. 25 Id. at 3, ¶ 10. Cancellation No. 92060205 - 11 - though he believed “certain testimony and evidence … is not commercially sensitive.”26 Board proceedings are designed to be public, and the improper designation of material as confidential thwarts this objective. Edwards Lifesciences Corp., 94 USPQ2d at 1402. Unless there is a legitimate need for confidentiality, the Board must be able to discuss the evidence of record as needed to explain the basis for its decision. Id. Further, we note that the parties discussed some of the purported confidential evidence during the oral hearing on March 23, 2021, which was open to the public.27 Because no one from the public attended the hearing, we will treat as confidential evidence that is clearly confidential or commercially sensitive but we will not otherwise be bound by the parties’ confidentiality designations. Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.”); see also Noble House Home Furnishings, LLC v. Floorco Enters., LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016) (“[W]e will treat only testimony and evidence that is truly confidential or commercially sensitive as such.”); Edwards Lifesciences Corp., 94 USPQ2d at 1402-03 (“Because of the overdesignation of testimony and evidence by the parties, it is not clear to us what is intended to be truly ‘Confidential’ and ‘Confidential Attorney’s Eyes Only.’ Therefore, in rendering our decision, we will not be bound by the parties’ designation.”). 26 Petitioner’s Brief, 138 TTABVUE 9, n.2. 27 All Board hearings are public. See https://www.uspto.gov/learning-and-resources/ip- policy/general-counsel-public-board-hearing-information (last visited June 14, 2021). Cancellation No. 92060205 - 12 - The Parties’ Stipulation The parties entered into the following evidentiary stipulations:28  All documents each party has produced in this matter are authentic under Rule 901 of the Federal Rules of Evidence; and  Each Party may make of record any document produced by the other in this litigation by filing a notice of reliance, and such documents may be relied upon without objection under Rule 901 of the Federal Rules of Evidence. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122(b)(1), 37 CFR § 2.122(b)(1), Respondent’s involved registrations.29 The parties also introduced evidence during trial. 1. Petitioner’s Evidence Petitioner’s evidence consists of:  Renewed Trial Affidavit of Petitioner, and exhibits thereto, executed August 20, 2018;30 28 June 29, 2018 Stipulation, 72 TTABVUE. The Board approved the stipulation on September 19, 2018. 81 TTABVUE. In direct conflict with the stipulation, the parties reserved the “right to challenge [the other party’s] assertion of authenticity of any document produced by [that party] and on which [that party] relies.”28 The parties did not raise any such objections, but if they had, this would have substantially undercut the purpose of the stipulation. 29 Respondent incorrectly asserts that Petitioner’s pleaded applications are automatically of record in this proceeding. Respondent’s Brief, 145 TTABVUE 15. 30 78 TTABVUE and 148 TTABVUE 6 (Ex. J to affidavit). These filings supersede Petitioner’s original testimony declaration, filed July 16, 2018 as an exhibit to Petitioner’s original notice of reliance, filed July 16, 2018. September 19, 2018 Order, 81 TTABVUE (granting Petitioner’s consented motion, filed August 17, 2018, to file amended testimony declaration and notice of reliance (77 TTABVUE)). In his affidavit, Petitioner references an Exhibit J consisting of an email from Frank Linares, Vice-President, Prime Enterprises, Inc., but no such exhibit is attached to the affidavit. On June 12, 2020, Petitioner filed a motion, with Respondent’s consent, for leave to file the “inadvertently omitted Exhibit J” to Petitioner’s affidavit. 148 TTABVUE. The Board granted Cancellation No. 92060205 - 13 -  Petitioner’s Notice of Reliance on certain of Respondent’s responses to requests for admission and interrogatories as well as certain documents Respondent introduced during discovery;31  Cross-Examination Trial Testimony, and exhibits thereto, of Thomas M. Gray, President and Chief Executive Officer of Pathfinder Management, Inc. (“Pathfinder”), and a Director of Respondent, taken May 2, 2019;32  Cross-Examination Trial Testimony, and exhibits thereto, of Niven R. Narain, Ph.D., Co-Founder, President, and Chief Executive Officer of Berg, LLC, taken April 5, 2019.33  Cross-Examination Trial Testimony of James Mercer, Chief of Operations of Cross Brands Manufacturing LLC, taken March 22, 2019.34  Cross-Examination Trial Testimony of John P. McCook, Chief of Operations Emeritus of Berg Pharma, a division of Berg, LLC, taken March 26, 2019.35  Cross-Examination Trial Testimony, and exhibits thereto, of Ernest Martinez, General Counsel and Secretary of Respondent and Pathfinder, taken May 2, 2019.36  Supplemental Cross-Examination Trial Testimony of Ernest Martinez, taken October 30, 2019.37 the motion on July 22, 2020. 155 TTABVUE. Accordingly, we treat Exhibit J attached to Petitioner’s motion (148 TTABVUE 6) as part of the record in this proceeding and have considered Exhibit J for what it shows on its face. 31 79 TTABVUE (confidential); 80 TTABVUE (redacted). These filings supersede Petitioner’s original notice of reliance, filed July 16, 2018 at 73 and 74 TTABVUE. September 19, 2018 Order, 81 TTABVUE. 32 126 TTABVIE (redacted); 127 TTABVUE (confidential). 33 128 TTABVUE (redacted); 129 TTABVUE (confidential). 34 130 TTABVUE (redacted); 131 TTABVUE (confidential). 35 132 TTABVUE (redacted); 133 TTABVUE (confidential). 36 136 TTABVUE (redacted); 137 TTABVUE (confidential). 37 134 TTABVUE (redacted); 135 TTABVUE (confidential). Cancellation No. 92060205 - 14 -  Cross-Examination Trial Testimony of Nancy Cancino, Director of Operations for Navajo, Inc., taken December 5, 2019;38  Rebuttal Trial Affidavit of Petitioner, and exhibits thereto, executed January 17, 2020;39  Petitioner’s Rebuttal Notice of Reliance on Trademark Electronic Search System (TESS) records for registrations owned by Pathfinder.40 2. Respondent’s Evidence Respondent introduced the following evidence:41  Cross-Examination Trial Testimony of Petitioner, and exhibits thereto, taken November 2, 2018;42  Respondent’s First Notice of Reliance on printouts from the Trademark Status and Document Retrieval (TSDR) system for Petitioner’s pleaded applications; printouts from the TESS database listing registrations and applications owned by Petitioner and Petitioner’s business Retrobrands for marks not involved in this proceeding; TTABVUE docket sheets for unrelated Board proceedings involving Petitioner; and Petitioner’s amended responses to certain interrogatories;43  Respondent’s Second Notice of Reliance on excerpts and exhibits from the discovery deposition of Petitioner, taken April 20, 2017, and Retrobrands’ business plan for the SEA & SKI sun care brand;44 38 124 TTABVUE (redacted); 125 TTABVUE (confidential). Pursuant to the Board’s order of September 30, 2019, Petitioner was permitted time to take the supplemental oral cross- examination of Mr. Martinez. 112 TTABVUE. 39 118 TTABVUE. 40 119 TTABVUE (redacted); 120 TTABVUE (confidential). 41 Respondent introduced duplicate documents through witness testimony. This unnecessarily increased the size of the record. 42 85 TTABVUE (redacted); 86 TTABVUE (confidential) 43 88 TTABVUE. Respondent also unnecessarily introduced portions of the file histories for its involved registrations. As Respondent acknowledged in its brief, the files for its involved registrations are automatically of record under Trademark Rule 2.122(b)(1). Respondent’s Brief, 142 TTABVUE 12. 44 90 TTABVUE (redacted); 92 (confidential). Cancellation No. 92060205 - 15 -  Trial Declaration, including exhibits, of Shawna Rydstrom, Sales Administration Manager of Navajo Inc., executed February 14, 2019;45  Trial Declaration, including exhibits, of John P. McCook, executed February 15, 2019;46  Trial Declaration, including exhibits, of James Mercer, executed February 15, 2019;47  Trial Declaration, including exhibits, of Thomas M. Gray, executed February 15, 2019;48  Trial Declaration, including exhibits, of Ernest Martinez, executed February 15, 2019.49  Trial Declaration, including exhibits, of Niven R. Narain, Ph.D., executed February 15, 2019.50  Trial Declaration, including exhibits, of Nancy M. Cancino, executed October 31, 2019;51 and  Rebuttal Cross-Examination Trial Testimony of Petitioner, and exhibits thereto, taken March 6, 2020.52 45 87 TTABVUE (redacted); 89 TTABVUE (confidential). 46 91 TTABVUE (redacted); 93 TTABVUE (confidential). 47 94 TTABVUE (confidential); 95 TTABVUE (redacted). 48 96 TTABVUE (redacted); 97 TTABVUE (confidential). 49 98 TTABVUE (redacted); 99 TTABVUE (confidential). 50 100 TTABVUE (redacted); 101 (confidential). 51 113 TTABVUE (confidential); 114 TTABVUE (redacted). Pursuant to the Board’s order of September 30, 2019, Respondent’s trial period was reopened to allow Respondent to introduce the testimony of Ms. Cancino. 112 TTABVUE. 52 140 TTABVUE. Cancellation No. 92060205 - 16 - II. Entitlement to a Statutory Cause of Action Petitioner must demonstrate that he is entitled to bring a statutory cause of action against Respondent.53 See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)). Specifically, Petitioner must prove that this cancellation action is within his zone of interests protected by the statute, 15 U.S.C. § 1064, and that he has a reasonable belief in damage proximately caused by continued registration of Respondent’s mark, i.e., that he is not a mere intermeddler. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, *6-7 (Fed. Cir. 2020), cert. denied, 593 U.S. ___ (2021). In its answer, Respondent admits that Petitioner owns two applications for the mark SEA & SKI; that Respondent’s “Registrations are identical or nearly identical and cover the same or similar classes as the trademarks applied for by Petitioner such that a denial of Petitioner’s application is required”; and that Petitioner’s “two trademark applications are currently on suspension awaiting the outcome of this 53 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” We now refer to this inquiry as entitlement to a statutory cause of action. Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting “standing” under §§ 1063 and 1064 remain applicable. See Spanishtown Enters., Inc. v. Transcend Res., Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Notwithstanding that an entitlement to a statutory cause of action is part of Petitioner’s case- in-chief, Petitioner did not address the issue in his main brief. Cancellation No. 92060205 - 17 - proceeding.”54 In its brief, Respondent acknowledges that “[t]he USPTO refused registration” of Petitioner’s pleaded applications “on likelihood of confusion grounds.”55 Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010) (assertion in a brief has evidentiary value to the extent it is an admission against interest); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 704.06(b) (TBMP) (2021). The record also includes TSDR records showing that Petitioner’s applications have been suspended and are involved in the instant cancellation proceeding.56 Generally, such facts are sufficient to establish a petitioner’s entitlement to a statutory cause of action. Australian Therapeutic, 2020 USPQ2d 10837, at *5; Empressa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.2d 1270, 111 USPQ2d 1058, 2062-63 (Fed. Cir. 2014). Respondent, however, challenges the legitimacy of Petitioner’s applications arguing that when Petitioner filed the applications on September 13, 2014 and October 3, 2014, respectively, Petitioner did not have a bona fide intent to use the SEA & SKI mark, and therefore, Petitioner cannot rely on the applications to establish his entitlement to a statutory cause of action.57 Respondent 54 Amended Petition, 13 TTABVUE 34-35, ¶¶ 3-4, 7; Answer to Amended Petition, 16 TTABVUE 2-3, ¶¶ 3-4, 7. 55 Respondent’s Brief, 145 TTABVUE 27. 56 Respondent’s First Notice of Reliance, 88 TTABVUE 53-63. 57 Respondent’s Brief, 145 TTABVUE 34-35 (redacted); 146 TTABVUE 30-31 (confidential). To support this position, Respondent relies on Salacuse v. Ginger Spirits Inc., 44 USPQ2d 1415, 1419 (TTAB 1997). In Salacuse, the petitioner alleged priority and likelihood of confusion based on two prior-filed intent-to-use applications. The respondent challenged the petitioner’s priority claim arguing that when the petitioner filed the pleaded applications he did not have a bona fide intent to use the mark. Salacuse is distinguishable. Priority is an element of a likelihood of confusion claim and is specifically different from the issue of Cancellation No. 92060205 - 18 - asserts that “Petitioner was interested in reserving the SEA & SKI mark for some other purpose [namely, to sell it], and not that Petitioner possessed a bona fide intent to sell any product under the SEA & SKI mark.”58 Petitioner is not required to demonstrate proprietary rights in a mark to establish his entitlement to a statutory case of action. Australian Therapeutic Supplies, 2020 USPQ2d 10837, at *3. He need only establish a legitimate interest in seeking to cancel the registrations and a reasonable belief in damage if Respondent’s registrations are allowed to subsist. Id. Petitioner admits that he has no experience in the sun care field.59 The record, however, shows that Petitioner is in the business of resurrecting defunct consumer brands “that the baby-boomer generation may recognize,”60 and that Petitioner filed the pleaded applications consistent with this business. Petitioner testified:  “I have been in the business of creating, marketing, and distributing consumer products of all different types such as beverages, herbicides, and personal care products for more than 30 years. Through my Florida corporation, Global Beverage Enterprises, Inc., I have manufactured, marketed, and sold numerous beverage brands through various nationwide distributors. My award winning beverage brand Mr. Q. Cumber has also been featured on television shows such as The View, The Today Show, and mentioned in several magazines, articles, and blogs.”61 entitlement to a statutory cause of action, which “is a low threshold.” Syngenta Crop Protection Inc. v. Bio-Check LLC, 90 USPQ2d 1112, 1118 (TTAB 2009). 58 Respondent’s Brief, 145 TTABVUE 33-34, 38 (redacted); 146 TTABVUE 30-31, 34 (confidential). 59 Respondent’s Second Notice of Reliance, 92 TTABVUE 43 (confidential). 60 Petitioner’s Affidavit, 78 TTABVUE 2, ¶ 3. 61 Petitioner’s Rebuttal Affidavit, 118 TTABVUE 4-5, ¶ 6. We have omitted the “®” from this quotation appearing after “Mr. Q. Cumber,” “The View,” and “The Today Show” as well as other quotations in which the parties used the “®” symbol. Cancellation No. 92060205 - 19 -  “Over the course of my 30 plus years of experience, … I have achieved a good deal of success both with my own brands, as well as through relaunching abandoned brands of many different genres, such as food, vapor rubs, toilet bowl cleaners, skin care, shampoo, cologne, clothing, drinks, desserts, personal hygiene, entertainment and laundry care.”62  “Using all of this experience and knowledge, I started Retrobrands63 with the specific business model of identifying formerly famous brands that have been abandoned with the goal of relaunching them to the public using modernized product formulas (where applicable). One of the first steps of my business model is to research whether a brand is on the market, and, if not, whether there are any apparent plans to relaunch it.”64  “Since approximately 2010, I, through Retrobrands, have been in the business of acquiring and relaunching formerly famous, but abandoned brands that still have consumer recognition.”65  “Retrobrands currently owns and has successfully re-launched” through licensees “many such brands, including … DI-GEL, CHIPWICH, HAI KARATE, TEGRIN, TENDER VITTLES, KEN-L RATION, PUSS ‘N BOOTS, AFTATE, VICTROLA, SANI-FLUSH, MUSTEROLE, and DRIXORAL.”66  “I feel it’s very important to have a licensee that has the infrastructure and the knowledge to … bring back these brands.”67  “[B]asically when I discover a brand that’s abandoned, I will do my due diligence to make sure it’s off the market, it’s not being relaunched. Then I will go through my usual procedures to … file for the application. And through my many years of experience bring … the brand back to market.”68 62 Petitioner’s Rebuttal Affidavit, 118 TTABVUE 5, ¶ 7. 63 Petitioner is the “founder, sole owner, and president” of Retrobrands. Cross-Exam of Petitioner, 86 TTABVUE 25 (confidential). 64 Petitioner’s Rebuttal Affidavit, 118 TTABVUE 5-6, ¶ 8. 65 Petitioner’s Affidavit, 78 TTABVUE 2, ¶ 2. 66 Petitioner’s Affidavit, 78 TTABVUE 2, ¶ 4; Cross-Exam of Petitioner, 86 TTABVUE 32-33 (listing his licensees for these marks) (confidential). 67 Cross-Exam of Petitioner, 86 TTABVUE 33 (confidential). 68 Cross-Exam of Petitioner, 86 TTABVUE 27 (confidential). Cancellation No. 92060205 - 20 - The record further shows that contemporaneous with filing the pleaded applications, Petitioner took some steps to determine whether SEA & SKI products were on the market. He “started to search [for SEA & SKI products] on Google” and “in early September 2014” he “came across an article from August 9, 2009 titled ‘Whatever Happened to Sea & Ski; Once the Nation’s Most Popular Suntan Brand’ … detail[ing] how the brand had disappeared from the market.”69 Also on September 23, 2014, he “attempted to make a purchase of SEA & SKI lip balm from the retail site of Navajo Inc.,” and on September 15, 2014, he “emailed a customer service representative” at Medshop Express about SEA & SKI products that were listed on the Medshop Express website as “Manufacturer Discontinued.”70 In both instances, he was informed that the products had been discontinued.71 In addition, Petitioner created a business plan. Respondent argues that Petitioner’s business plan is a “sham” plan that “Petitioner … has not seen since 2014”:72 The plan is a template to which Petitioner makes minimal modifications as Petitioner moves from one project to the next…. Despite the disparate nature of these products (and product industries), Petitioner’s business plans are identical or nearly identical, containing only minor differences in certain sections….In some instances, the SEA & SKI plan includes vestiges of other business plans that are … inapplicable. 69 Petitioner’s Affidavit, 78 TTABVUE 3, ¶ 7. 70 Petitioner’s Affidavit, 78 TTABVUE 4, ¶¶ 12 and 14. 71 Petitioner’s Affidavit, 78 TTABVUE 86, 91 (Exs. G and I). 72 Respondent’s Brief, 146 TTABVUE 27-28, 33. We discuss the business plans generally because they have been designated confidential. Cancellation No. 92060205 - 21 - Petitioner’s SEA & SKI business plan is similar to Petitioner’s plans for products in unrelated fields and the plan contains a number of typographical errors. Even though portions of the plan appear to have been copied from prior unrelated business plans and contain inapplicable references, we do not discount the plan. Petitioner has shown that he typically works with licensees with industry knowledge to bring products to market. Accordingly, it is not surprising that his business plan is unpolished. The plan provides some indication that Petitioner is interested in pursuing use of the SEA & SKI mark. We also are not persuaded by Respondent’s argument that Petitioner has engaged in a pattern of filing “numerous intent-to-use applications” for disparate goods and services, “most of which show as ‘Dead’” as well as “cancellation proceedings that set forth abandonment claims and base Petitioner’s standing in those proceedings on recently or concurrently-filed intent-to-use applications.”73 Respondent introduced search results from the TESS database listing applications and registrations owned by Petitioner and his company Retrobrands as well as the TTABVUE docket sheets for 5 cancellation actions brought by Petitioner against third-party marks.74 The 73 Respondent’s Brief, 145 TTABVUE 38. 74 Respondent’s First Notice of Reliance, 88 TTABVUE 65-83. In a footnote, Respondent asserts that “as of October 2, 2015, the date that [Respondent] filed its Opposition to Petitioner’s summary judgment motion, Petitioner had instituted twenty- two (22) other proceedings against trademark owners” and lists the proceeding numbers. 146 TTABVUE 22-23, n.2. As explained in the summary judgment order “[t]o be considered at final hearing, any [summary judgment] evidence must be properly introduced [into] evidence during the appropriate trial period.” 34 TTABVUE 15, n.13. No such evidence was introduced during trial so we cannot consider it. Nor will the Board take judicial notice of Office records. See, e.g., UMG Recordings Inc. v. O’Rourke, 92 USPQ2d 1042, 1046 (TTAB 2009) (“[I]t is well settled that the Board does not take judicial notice of USPTO records.”). Cancellation No. 92060205 - 22 - TESS search results do not show the filing bases of the applications and registrations or the identified goods and services, and Respondent did not submit copies of the registrations and applications identified in the search results.75 Similarly, the TTABVUE docket sheets do not reflect the claims pleaded in the identified proceedings and may not accurately reflect the substance of the identified documents as TTABVUE docket entries often are manually entered. Respondent also did not introduce the filings or orders from the cases so we do not know the claims Petitioner pleaded. Accordingly, the evidence does not establish that Petitioner has a pattern of filing “numerous intent-to-use applications” for unrelated goods and bringing numerous cancellation actions based on claims of abandonment. Moreover, the record establishes that Petitioner has brought to market a number of formerly abandoned consumer brand products in a different fields. Cf. Philanthropist.com, Inc. v. General Conference Corp. of Seventh-Day Adventists, 2021 USPQ2d 643, at *14-16 (TTAB In addition, Respondent cites to a prior published, but non-precedential, Board decision involving Petitioner, Kaplan v. Brady, 98 USPQ2d 1830 (TTAB 2011), where the Board: (1) denied Petitioner’s motion for summary judgment finding genuine disputes of material fact as to whether Petitioner was entitled to a statutory cause of action based on his pleaded applications; (2) noted that many portions of Petitioner’s business plan “appear to be lifted verbatim from a business plan regarding intended use of the mark BAKE OFF for” an unrelated product; and (3) stated “in addition to the above-captioned proceeding, petitioner has commenced nine cancellation proceedings within the last year in which he has set forth abandonment claims and has based his standing in those proceedings on recently- or concurrently-filed intent-to-use applications.” While we may consider Kaplan v. Brady for its legal principals, we do not take judicial notice of the factual finding therein or the evidence relied on in reaching that determination. See UMG Recordings, 92 USPQ2d at 1046; see also General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1076 (7th Cir. 1997) (district court erred in taking judicial notice of “facts” from an unrelated proceeding without determining that the facts were undisputed); 75 In any event, the TESS search results list a number of “live” applications and registrations owned by Petitioner and his company Retrobrands. Respondent’s First Notice of Reliance, 88 TTABVUE 65-72. Cancellation No. 92060205 - 23 - 2021) (no entitlement to a statutory cause of action where petitioner, involved in registering domain names, offering them for sale, and letting them go un-renewed where no re-sale interest, offered domain name to respondent for “a considerable profit” and only used the domain name “as collateral for purchase … or to redirect users to the TTABVUE docket page for these proceedings”); cf. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1441-42 (TTAB 2012) (finding bad faith for purposes of Section 2(d) analysis where opposer demonstrated applicant’s pattern of filing but abandoning numerous intent-to-use applications for marks “identical to some of the best known, previously registered trademarks in the country”) (internal quotations omitted)). In sum, based on Petitioner’s established business of reviving “baby-boomer” brands and the steps he took contemporaneous with filing the applications to determine whether SEA & SKI products were on the market, we find that Petitioner has demonstrated a legitimate interest in the SEA & SKI mark. Accordingly, the USPTO’s refusal of Petitioner’s applications for the mark SEA & SKI based on a likelihood of confusion with Respondent’s registered SEA & SKI mark establishes that Petitioner has a real interest in this proceeding and a reasonable belief in damage. Petitioner is not a mere intermeddler. III. Abandonment A. Applicable Law Section 45 of the Trademark Act, 15 U.S.C. § 1127, provides in pertinent part that a mark shall be deemed “abandoned”: Cancellation No. 92060205 - 24 - When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from the circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark. There are two elements to a nonuse abandonment claim: nonuse of the mark and intent not to resume use. Executive Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180 (TTAB 2017); see also Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1131 (Fed. Cir. 2015). Because registrations are presumed valid under Section 7 of the Trademark Act, 15 U.S.C. § 1057, the party seeking cancellation based on abandonment bears the burden of proving a prima facie case. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1476 (Fed. Cir. 2000); ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1042 (TTAB 2012). Evidence of nonuse of a mark for three consecutive years constitutes a prima facie showing of abandonment, and creates a rebuttable presumption that the registrant has abandoned the mark without intent to resume use. Rivard v. Linville, 133 F.3d 1446, 45 USPQ2d 1374, 1376 (Fed. Cir. 1998). The prima facie case of abandonment “‘eliminates the challenger’s burden to establish the intent element of abandonment as an initial part of [his] case’ and creates a rebuttable presumption that the defendant abandoned the mark without an intent to resume use.” Imperial Tobacco Ltd. v. Phillip Morris Inc., 899 F.2d 1575, 14 USPQ2d 1390, 1392 (Fed. Cir. 1990). The burden then shifts to the defendant to prove that it used the mark during the statutory period or intended to resume use of the mark. Id. at 1394-95; see also Cancellation No. 92060205 - 25 - Rivard, 45 USPQ2d at 1376. The burden of persuasion, however, always remains with the party asserting abandonment to prove it, by a preponderance of evidence. Cerveceria Centroamericana S.A. v. Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d 1307, 1309-12 (Fed. Cir. 1989). B. Respondent’s Affiliates and Timeline of Respondent’s Use of the SEA & SKI Mark Since April 2003, Pathfinder has been the sole owner of Respondent.76 Radiant Technologies, Inc. (“Radiant”) was an affiliate of Respondent and Respondent’s licensee in the SEA & SKI mark. The following timeline is pertinent to Petitioner’s abandonment claim:  April 2003: Pathfinder acquired Respondent.77  2005 through 2009: Respondent, through its “marketing arm” and licensee Radiant, distributed the following products bearing the SEA & SKI mark: Aloe vera gel, after sun lotion, carrot oil, lip balm with sun protection factor (SPF), and a range of sunblock preparations with SPF.78 76 Gray Declaration, 96 TTABVUE 5, ¶ 3. 77 Gray Declaration, 97 TTABVUE 6, ¶ 5 (confidential). 78 Petitioner’s Notice of Reliance, 79 TTABVUE 64 (list of retailers) (confidential), 80 TTABVUE 7, 32-34 (Response to Request for Admission 11; Responses to Interrogatory 5 listing products sold under the SEA & SKI mark from 2005-2009, and Interrogatory 7 (“[Respondent] licensed its rights in the SEA & SKI brand to its affiliate, Radiant Technologies, Inc….”)); Gray Cross-Exam, 126 TTABVUE 23-24, 35; Martinez Declaration, 98 TTABVUE 8, 11-14, ¶ 18 (Respondent “sold the remaining inventory of SEA & SKI branded sun care lotions products through 2009”) and Ex. A (listing “retailers that carried SEA & SKI branded products” from 2006-2013). Respondent acquired title to the SEA & SKI mark and the involved registrations on July 28, 2000. Assignment Records, Reel/Frame 2225/0377. Pathfinder acquired Respondent in April 2003. Gray Declaration, 97 TTABVUE 6, ¶ 5 (confidential). There is some evidence that the SEA & SKI mark was in use in 2004. Gray Cross-Exam, 127 TTABVUE 30; Petitioner’s Cancellation No. 92060205 - 26 -  September 1, 2006 - August 31, 2010: Pursuant to a written agreement and extension thereto, Radiant sublicensed the SEA & SKI mark to Navajo Manufacturing Inc. (“Navajo”) for lip care products, including lip balm with SPF, and Navajo sold lip balm pursuant to the written license and extension agreements.79  End of 2009: Respondent voluntarily ceased all use of the SEA & SKI mark except for lip care products sold through its sublicensee Navajo.80  July 2010 - August 2010: Radiant and Navajo negotiated for a further extension of the SEA & SKI sublicense. No written agreement was reached.81  September 1, 2010 through December 2013: Navajo continued to sell SEA & SKI lip care preparations, including lip balm with SPF, and paid some Notice of Reliance, 80 TTABVUE 34 (Response to Interrogatory 6). But both parties refer in their briefs to the mark being used from 2005 to 2009. Petitioner’s Brief, 138 TTABVUE 10; Respondent’s Brief, 142 TTABVUE 19. Accordingly, we deem the parties to have stipulated that the mark was in use at least from 2005-2009. Petitioner does not argue that the mark was abandoned prior to 2005 so that issue is not before us. Yazhong Investing Ltd. v. Multi- Media Tech. Ventures, Ltd., 126 USPQ2d 1526, 1537 (TTAB 2018). 79 Petitioner’s Notice of Reliance, 80 TTABVUE 34, Response to Interrogatory 7 (“Radiant Technologies entered into a sub-license agreement with Navajo Manufacturing….”); See also Martinez Declaration, 98 TTABVUE 7-8, ¶ 17; Cancino Declaration, 114 TTABVUE 5, ¶¶ 4- 5 (redacted), 113 TTABVUE 11-29, Exs. A-B (confidential); Gray Declaration, 96 TTABVUE 8-9, ¶ 21. Radiant also sublicensed Navajo the right to use the SEA & SKI mark for additional goods not relevant to this proceeding. 80 Gray Declaration, 96 TTTABVUE 8, ¶ 20; Gray Cross-Exam, 126 TTABVUE 69-70. 81 Cancino Declaration, 114 TTABVUE 5, ¶¶ 6-7 (redacted), 113 TTABVUE 31-37, Exs. C-D (confidential); see also Gray Declaration, 96 TTABVUE 8-9, ¶ 21. Cancellation No. 92060205 - 27 - royalties to Navajo for the first, second and third quarters of 2011 and the first quarter of 2012 (March 31, 2012).82  April 10, 2013: Ernest Martinez, Secretary and General Counsel of Respondent, Pathfinder and Radiant,83 sent a cease and desist letter to Navajo asserting that the written sublicense authorizing Navajo to use the SEA & SKI mark on lip balm expired on August 31, 2010 and demanding that Navajo cease all use of the mark.84  May 1, 2013: Radiant memorialized in writing Navajo’s right to use the SEA & SKI mark for lip balm through December 31, 2013 in exchange for a lump sum payment issued April 30, 2013.85  December 31, 2013: Navajo ceased all use of the SEA & SKI mark. 82 Martinez Declaration, 98 TTABVUE 7-8, ¶ 17; Gray Declaration, 96 TTABVUE 9, ¶ 22; Cancino Declaration, 114 TTABVUE 6, ¶ 11 (redacted), 113 TTABVUE 41-49, Exs. F-G (confidential) (license royalty reports “reflecting Navajo’s sales of SEA & SKI branded products between 2007 and 2013,” and emails between Navajo and Pathfinder “exchanged between December 8, 2011 and December 14, 2011, concerning payment of royalties by Navajo to Raidant”); Rydstrom Declaration, 89 TTABVUE 43, 53 (confidential). Petitioner asserts “there is no evidence that Navajo made royalty payments after Q1 2011.” Rebuttal Brief, 149 TTABVUE 19. But check remittances (listing check numbers) from Navajo to Radiant for the first, second and third quarters of 2011 and first quarter of 2012 are attached to the Rydstrom Declaration. 89 TTABVUE 43, 53 (confidential). 83 Radiant was dissolved in “[e]ither ’14 or ’15.” First Martinez Cross-Exam, 136 TTABVUE 20-21. 84 Cancino Declaration, 114 TTABVUE 7, ¶ 13 (redacted), 113 TTABVUE 86, Ex. I (confidential) 85 Cancino Declaration, 113 TTABVUE 9, 94, ¶ 16 and Ex. L (confidential); 114 TTABVUE 7, ¶ 15 (redacted). Cancellation No. 92060205 - 28 -  May 25, 2016: Respondent granted a license in the SEA & SKI mark to Cross Brands Manufacturing LLC (“Cross Brands”)86  July 10-13, 2016: Cross Brands attended the Efficient Collaborative Retail Marketing Sun Care Show in Orlando, Florida, where Cross Brands promoted and filled orders for SEA & SKI sunscreen.87 Since then, Cross Brands has continuously sold SEA & SKI sunscreen to retailers such as Walmart, Stop & Shop, Harris Teeter, ShopRite, WinCo Foods, Big Y, Giant, and through its e- commerce site.88 C. The Parties’ Arguments Based on the foregoing timeline, Petitioner argues that Respondent did not use the SEA & SKI mark for any goods (except lip balm) for more than three years, from 2009 when Respondent ceased sales until the summer of 2016 when Cross Brands began selling SEA & SKI sunscreen. As for lip balm, Petitioner argues a three-year period of nonuse from August 31, 2010 to the present. Petitioner asserts that Navajo’s continued use of the SEA & SKI mark after the August 31, 2010 expiration of the written sublicense extension does 86 Gray Declaration, 97 TTABVUE 10, ¶¶ 27-28 (confidential); Martinez Declaration, 99 TTABVUE 9, ¶¶ 21-22 (confidential). 87 Petitioner’s Notice of Reliance, 80 TTABVUE 43 (Response to Interrogatory 2); Mercer Cross-Exam, 130 TTABVUE 62, 71-72 (testifying that Cross Brands brought SEA & SKI products to the trade show and sold SEA & SKI products). 88 Gray Declaration, 97 TTABVUE 10, ¶¶ 27-28, and Ex. 2 (confidential); Mercer Declaration, 94 TTABVUE 6-7, ¶ 8 (confidential), 95 TTABVUE 7, ¶ 10, 11-17, Exs. B and D (redacted) consisting of photos of SEA & SKI sunscreen products on a store shelf and printouts from the website seanski.com selling SEA & SKI sunscreen. Cancellation No. 92060205 - 29 - not inure to the benefit of Respondent because it was an unauthorized use and Radiant “inarguably failed to exhibit any measure of quality control over Navajo’s actions after September 2010” resulting in a “naked” license.89 As proof that Navajo’s continued sale of SEA & SKI lip balm after August 31, 2010 was unauthorized, Petitioner cites the cease and desist letter Radiant sent to Navajo on April 10, 2013. Petitioner further points to Mr. Martinez’s testimony that Respondent “did not oversee the manufacturing of the lip balm nor did it sample the lip balm [after August 31, 2010], and that Mr. Martinez did not even know whether [Respondent] had inspected the products or approved the product packaging.”90 In addition, Petitioner asserts that Navajo’s use of the SEA & SKI mark was not a bona fide use but merely an impermissible attempt to reserve rights in the SEA & SKI mark (e.g. “warehouse” the mark).91 Respondent, on the other hand, argues that Navajo’s use of the SEA & SKI mark on lip balm with SPF was bona fide and made pursuant to a valid license until December 31, 2013, and that there has been no three-year period of nonuse of the SEA & SKI mark because Respondent’s licensee Cross Brands commenced use of the SEA & SKI mark for sunscreen products in the summer of 2016. D. Analysis 1. Navajo’s Use of the SEA & SKI Mark for Lip Balm There is no dispute that from September 1, 2006 until August 31, 2010 Navajo 89 Petitioner’s Brief, 138 TTABVUE 40. 90 Petitioner’s Brief, 138 TTABVUE 39. 91 Petitioner’s Brief, 138 TTABVUE 34-35 (redacted), 139 TTABVUE 34-35 (confidential). Cancellation No. 92060205 - 30 - sold SEA & SKI lip care products pursuant to a valid written sublicense from Radiant. The license agreement was filed under seal so we do not discuss its particular terms, but the agreement included extensive quality control provisions. There is no evidence that Radiant failed to exercise sufficient quality control during the terms of the written sublicense and extension. Accordingly, Navajo’s use of the SEA & SKI mark from September 1, 2006 to August 31, 2010 inured to the benefit of Respondent. Quality Candy Shoppes/Buddy Squirrel of WI Inc. v. Grande Foods, 90 USPQ2d 1389, 1392 (TTAB 2007) (“[Y]ears of precedent make it very clear that proper use of a mark by a trademark owner’s licensee or related company constitutes ‘use’ of that mark attributable to the trademark owner.”). In July 2010, one month before the expiration of the sublicense, Navajo and Radiant discussed terms to further extend the license. It does not appear that Navajo and Radiant reached a written extension agreement, but Navajo continued to sell SEA & SKI lip care products and to pay some royalties to Radiant in 2011 and 2012 as it had done under the written license agreement. Based on this conduct, we find that there was an informal, implied license from Radiant to Navajo to continue to use the SEA & SKI mark for lip care products after August 31, 2013.92 Woodstock’s Enters. Inc. (California) v. Woodstock’s Enters. Inc. (Oregon), 43 USPQ2d 1440, 1446-48 (TTAB 1997), aff’d, 152 F.3d 942 (Fed. Cir. 1998) (“It is settled … that a license may be implied”); Univ. Book Store v. Univ. of Wis. Bd. of Regents, 33 USPQ2d 1385, 1396 92 Mr. Martinez’s testimony that the royalty payments were “inconsistent” after August 31, 2010 reflects an informal arrangement between Navajo and Radiant. Second Martinez Cross- Exam, 134 TTABVUE 37. Cancellation No. 92060205 - 31 - (TTAB 1994) (implied license). We acknowledge Radiant’s April 2013 cease and desist letter objecting to Navajo’s post-August 31, 2010 use as unauthorized, but the evidence suggests that Radiant had a business reason for sending the letter. Both Mr. Gray and Mr. Martinez testified that Radiant wanted to be free to explore other business opportunities for the brand.93 Alleging Navajo’s use was “unauthorized” would have provided leverage to terminate the relationship with Navajo. Moreover, although Mr. Martinez testified that Navajo was no longer authorized to use the SEA & SKI mark from “a legal standpoint” after August 31, 2010, he also testified:94 Q. After August 31st, 2010, Navajo lost all right to utilize the SEA & SKI marks; is that right? A. Again - well, let me just say that there was no extended - there was no extension of the license that was well written at that point…. And the relationship just continued without a license agreement until it was actively terminated in - by agreement of the parties in 2013. Q. So it’s your testimony that the agreement did not actually expire after August 31, 2007 [sic]? A. Well, the term expired…. But the parties continued to function as if the agreement was still in effect. We find Mr. Martinez’s testimony that Navajo was not authorized “from a legal standpoint” to use the SEA & SKI mark after August 31, 2010 as an acknowledgment only that there was no written license agreement between Radiant and Navajo, not 93 First Martinez Cross-Exam, 137 TTABVUE 23 (confidential); Gray Cross-Exam, 127 TTABVUE 85-86 (confidential). 94 First Martinez Cross-Exam, 137 TTABVUE 6, 13 (confidential). Cancellation No. 92060205 - 32 - an admission that there was no longer a license arrangement between them. Moreover, on May 1, 2013, Radiant memorialized in writing Navajo’s right to continue to sell SEA & SKI lip care products through December 31, 2013 and Navajo continued such sales until this time. The May 1, 2013 agreement, in effect, ratified the implied license from Radiant. Whether Respondent exercised sufficient control over Navajo during the implied license is a question of fact. Woodstock’s Enters., 43 USPQ2d at 1446. To be a valid license, a licensor must “exercise sufficient control to guarantee the quality of the goods sold to the public under the mark.” Id. (“The rationale behind quality control is that the public has a right to expect a consistent quality of goods or services associated with a trademark or service mark.”); see also Taco Cabana Int’l Inc., v. Two Pesos Inc., 932 F.2d 1113, 19 USPQ2d 1253, 1259 (5th Cir. 1991), aff’d, 505 U.S. 763, 23 USPQ2d 1081 (1993) (“The purpose of the quality-control requirement is to prevent the public deception that would ensue from variant quality standards under the same mark[.]”). The licensor’s quality control efforts need not be comprehensive or extensive. Woodstock’s Enters., 43 USPQ2d at 1446. Nor do quality control provisions need to be formal or set out in a written agreement. Id. at 1446-48 (finding license despite no formal, written agreement or formal system of quality control); Winnebago Indus. Inc. v. Oliver & Winston Inc., 207 USPQ 335, 341 (TTAB 1980) (informal quality control sufficient). In fact, “[c]ontrol may … be adequate where the licensor justifiably relies on the integrity of the licensee to ensure the consistent quality of the [goods sold] under the mark.” Woodstock’s Enters., 43 USPQ2d at 1446, citing Taco Cancellation No. 92060205 - 33 - Cabana, 19 USPQ2d at 1259 (“Where the license parties have engaged in a close working relationship, and may justifiably rely on each parties’ intimacy with standards and procedures to ensure consistent quality, and no actual decline in quality standards is demonstrated, we would depart from the purpose of the law to find an abandonment simply for want of all the inspection and control formalities.”); see also Embedded Moments, Inc. v. Int’l Silver Co., 648 F. Supp. 187, 194 (E.D.N.Y. 1986) (license agreement without explicit provision for supervisory control and absence of actual inspection did not demonstrate abandonment where prior working relationship established basis for reliance on licensee’s integrity and history of manufacture was “trouble-free”). Even though Radiant “did not oversee the manufacturing of the lip balm nor did it sample the lip balm”95 after August 31, 2010, Radiant and Navajo had a four-year prior working relationship regarding SEA & SKI lip care preparations. A written sublicense agreement with quality control provisions governed Navajo’s use of the SEA & SKI mark from September 1, 2006 to August 31, 2010. There is no evidence that Radiant failed to exercise quality control over the SEA & SKI products Navajo sold during the terms of the written sublicense and extension thereof. Absent evidence to the contrary, we presume that Radiant was satisfied with the quality of the SEA & SKI lip balm Navajo sold pursuant to the four-year written license and extension. There is no evidence that Navajo changed anything about its manufacture or sale of SEA & SKI products after expiration of the written license extension or that 95 Petitioner’s Brief, 138 TTABVUE 39. Cancellation No. 92060205 - 34 - the quality of the goods declined in any way. Indeed, Mr. Martinez testified that “there were no changes after 2010” to Navajo’s products or product packaging previously signed off on by Radiant.96 In sum, we find that Navajo’s use of the SEA & SKI mark on lip care products was made pursuant to a valid implied license from September 1, 2010 until the license arrangement was memorialized in writing on May 1, 2013 allowing Navajo until December 31, 2013 to sell SEA & SKI lip care products. Accordingly, Navajo’s use of the SEA & SKI mark for lip care products, including lip balm with SPF, through December 31, 2013 inures to the benefit of Respondent. As for whether Navajo’s use of the SEA & SKI mark was bona fide or was made merely to reserve rights in the mark, Petitioner argues:97 [Respondent] allowed [Navajo] to use the brand to sell only lip balm … as a conduit to keep the brand alive until some unspecific future time. This was not “bona fide use…made in the ordinary course of trade” but rather was admittedly done “merely to reserve a right in a mark.” 15 U.S.C § 1127. This effort to “warehouse” or “hoard” the SEA & SKI Marks despite any objective intent to resume trademark use in the reasonably foreseeable future is improper and does not constitute a viable abandonment defense. In support of this position, Petitioner cites the testimony of Mr. Gray, Director of Respondent, that Navajo’s use was “intended to keep the trademark in the marketplace” pending other plans for the brand:98 96 First Martinez Cross-Exam, 126 TTABVUE 27. 97 Petitioner’s Brief, 138 TTABVUE 35. 98 Gray Declaration, 97 TTABVUE 9, ¶ 23 (confidential). Mr. Gray is also the President and CEO of Pathfinder, and at the time of Navajo’s use of the SEA & SKI mark, Mr. Gray was the CEO of Radiant. Gray Declaration, 96 TTABVUE 5, ¶ 1 (redacted). Cancellation No. 92060205 - 35 - Q. And is it my understanding … [that] the purpose of Navajo’s use was essentially like a placeholder in the marketplace to hold onto [the mark until SEA & SKI suntan lotion could be reintroduced to the market]? A. That was our intent in the beginning. Again, things take much longer than you anticipate, but it was our intent in the beginning. It also provided some revenue towards the registration and licensing requirements that we had.99 This testimony does not dictate a finding that the use by Navajo was merely to reserve rights in the mark. We must consider whether Navajo’s use was a “bona fide use.” 15 U.S.C. § 1127. The record shows that Navajo consistently sold SEA & SKI lip care products every quarter from 2007 through 2013 to a number of different retailers.100 The sales are not substantial but reflect a continuous use of the SEA & SKI mark on lip care preparations constituting a “bona fide use of the mark in the ordinary course of trade.” 15 U.S.C. § 1127; Person’s Co. v. Christman, 900 F.2d 1565, 14 USPQ2d 1477, 1482 (Fed. Cir. 1990) (“intermittent sales” and “small” inventory “do not necessary imply abandonment”; “There is also no rule of law that the owner of a trademark must reach a particular level of success, measured either by the size of the market or by its own level of sales, to avoid abandoning the mark.”); Wallpaper Mfrs., Ltd. v. Crown Wallcovering Corp., 680 F.2d 755, 214 USPQ 327, (CCPA 1982) (finding bona 99 Gray Cross-Exam, 127 TTABVUE 84-85 (confidential). 100 We do not discuss the specific sales figures because they have been designated confidential. Cancino Declaration, 113 TTABVUE 43, 45, 51-84 (confidential); Rydstrom Declaration, 89 TTABVUE 28, 31, 34, 37, 40, 42, 47, 79, 52, 55 (confidential); See also Martinez Declaration, 98 TTABVUE 8, 11-14, ¶ 18 and Ex. A (listing “retailers that carried SEA & SKI branded products” from 2006-2013). Cancellation No. 92060205 - 36 - fide use based on continuous and deliberate use); cf. Continental Grain Co. v. Strongheart Prods., Inc., 9 USPQ 1238 (TTAB 1988) (finding “nominal” once a year shipments for 14 years and “only one recent shipment” consisting of “1 case of each flavor totaling $20.00” after petition for cancellation filed). Indeed, the sales were apparently profitable enough that Navajo sought to extend its license of the SEA & SKI mark. 2. For What Goods, if Any, Has Petitioner Established a Prima Facie Case of Abandonment? To determine whether Petitioner has established a prima facie case of abandonment for any of the goods covered by the involved registrations, we first consider whether Respondent’s use of the SEA & SKI mark, through its sublicensee Navajo, on lip balm with SPF until December 31, 2013 is sufficient to demonstrate use of the mark on Respondent’s other goods. In addition to lip balm, Respondent’s involved registrations cover:  suntan lotions; suntan oil; suntan cream; sunblock lotion; sunblock cream;  self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; Cancellation No. 92060205 - 37 -  self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light;  lotion for use as a relief from, and preventative for, chapping, skin irritations and diaper rash; and  after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light. The following definitions are pertinent to our analysis:101  Lip Balm: “a substance that you put on your lips if they are dry and sore”;102 “a type of cream that is used to keep the lips soft or to help sore lips feel better.”103  Suntan Lotion: “a cream, lotion, or oil that you rub onto your skin to stop it from being burned by the sun.”104  Sunblock: “a cream that you can rub onto your skin to stop it from being burned by the sun”;105 “a preparation (such as a lotion) applied to the skin to prevent sunburn (as by physically blocking out ultraviolet radiation).”106 101 We take judicial notice of these definitions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006) (“As a general rule, the Board may take judicial notice of dictionary evidence.”). 102 www.macmillandictionary.com/us/dictionary/american/lip-balm (last visited June 14, 2021). 103 www.dictionary.cambridge.org/us/dictionary/english/lip-balm (last visited June 14, 2021). 104 www.macmillandictionary.com/us/dictionary/american/suntan-lotion (last visited June 14, 2021). 105 www.macmillandictionary.com/us/dictionary/american/sunblock (last visited June 14, 2021). 106 www.merriam-webster.com/dictionary/sunblock (last visited June 14, 2021). Cancellation No. 92060205 - 38 - We further take judicial notice that the surface of the lips is skin.107 Based on the definitions set forth above and consistent witness testimony that Respondent, through Navajo, sold lip balm with SPF,108 we find that Respondent’s use of the SEA & SKI mark on lip care preparations, including lip balm with SPF, until December 31, 2013 is broad enough to encompass use of the SEA & SKI mark on:  suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream;  lotion for use as a relief from, and preventative for, chapping, skin irritations; and  after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light.109 Less than three years later, in the summer of 2016, Respondent’s licensee Cross Brands resumed use of the SEA & SKI mark for sunscreen preparations, including sunscreen with “moisturizing ingredients” to “help moisturize [the] skin to help with 107 www.britannica.com/science/lips (last visited June 8, 2021) (“Lips, soft pliable anatomical structures that form the mouth margin of most vertebrates, composed of a surface epidermis (skin), connective tissue, and (in typical mammals) a muscle layer.”). The Board may take judicial notice of encyclopedias and other standard reference works. See, e.g., In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1087 n.3 (TTAB 2016); In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.24 (TTAB 2013). 108 Cancino Declaration, 114 TTABVUE 6, ¶ 9; Gray Declaration, 96 TTABVUE 8-9, ¶ 21; Gray Cross-Exam 126 TTABVUE 77; Martinez First Cross-Exam, 136 TTABVUE 17-18. 109 Petitioner argues on rebuttal that the suntan and sunblock preparations covered by the registration and lip balm “are two distinct products.” 149 TTABVUE 15-16, n.4. We do not disagree, but there is overlap in the nature of the goods for the reasons explained. Cancellation No. 92060205 - 39 - the infrared rays that we’re exposed to.”110 Cross Brands has been continually selling SEA & SKI sunscreen preparations since that time.111 Cross Brands’ use inures to the benefit of Respondent, as licensor, and is sufficient to constitute use on: (1) “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”; (2) “lip balm” because “lip balm with SPF” is a “sunscreen”; (3) “lotion for use as a relief from, and preventative for, chapping, skin irritations” because sunscreens prevent skin irritations from the sun; and (4) “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra- violet light” because, as Mr. Mercer testified, the sunscreens Cross Brands sells include “moisturizing ingredients” to “help moisturize [the] skin to help with the infrared rays that we’re exposed to,” which is covered by the description of after sun lotion in Respondent’s registration, and because sunscreen is used during sun exposure so is often applied after some sun exposure. Accordingly, we find that Petitioner is not entitled to a presumption of abandonment with respect to: “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”; “lip balm”; “lotion for use as a relief from, and preventative for, chapping, skin irritations”; and “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light.” 110 Mercer Cross-Exam, 131 TTABVUE 63. 111 Gray Declaration, 97 TTABVUE 10, ¶¶ 27-28, and Ex. 2 (confidential); Mercer Declaration, 95 TTABVUE 7, 11, 14, ¶ 10 and Exs. B and D consisting of photos of SEA & SKI sunscreen products on a store shelf and printouts from the website seanski.com selling SEA & SKI sunscreen. Cancellation No. 92060205 - 40 - Petitioner, however, has proven at least three years nonuse with respect to “self- tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra- violet light, and also to function as skin moisturizers; self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light” and “lotion for use as a relief from, and preventative for, diaper rash,” with which Petitioner has not used the SEA & SKI mark since at least the end of 2009. Accordingly, he is entitled to a presumption of abandonment with respect to these goods. 3. Goods for Which There Is No Presumption of Abandonment. The burden of demonstrating Respondent’s abandonment remains on Petitioner as to the following goods for which Petitioner failed to prove three years nonuse:  “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”;  “lip balm”;  “lotion for use as a relief from, and preventative for, chapping, skin irritations”; and  “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light.” Cancellation No. 92060205 - 41 - Petitioner must affirmatively establish a prima facie case by a preponderance of the evidence that Respondent discontinued use of the SEA & SKI mark for these goods with the intent not to resume use. Double Coin Holding Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *15 (TTAB 2019) (citing FirstHealth of Carolinas, Inc. v. CareFirst of Md., Inc., 479 F.3d 825, 81 USPQ2d 1919, 1922 (Fed. Cir. 2007)). We must examine the activities that Respondent engaged in between December 31, 2013, when its sublicensee Navajo ceased use of the SEA & SKI mark, to July 2016, when Cross Brands resumed use of the mark, to determine whether we may infer from those circumstances an intent not to resume use for the goods identified above. Exec. Coach Builders, 123 USPQ2d at 1198-99; Double Coin, 2019 USPQ2d 377409, at *15. The activities must be those that a reasonable business with a bona fide intent to use a mark in commerce would have undertaken. Rivard 45 USPQ2d at 1376; see also Double Coin, 2019 USPQ2d 377409, at *15; Exec. Coach Builders, 123 USPQ2d at 1198. To be clear, “our task is not to determine whether [Respondent’s] decision to discontinue sales … was ‘excusable,’ that is, a reasonable business judgment under the circumstances.”112 Double Coin, 2019 USPQ2d 377409, at *14-15. Rather, “we must examine the activities that [Respondent] engaged in during the period following cessation of use to determine whether we may infer from those circumstances an intent not to resume use.” Id. at 15 (citing Exec. Coach Builders, 123 USPQ2d at 1198- 99). “Plans must be to resume commercial use of a mark within the ‘reasonably 112 Accordingly, we are not persuaded by Petitioner’s argument that there is no excusable nonuse because Respondent’s nonuse was based on a business decision rather than circumstances beyond its control. Petitioner’s Brief, 138 TTABVUE 34. Cancellation No. 92060205 - 42 - foreseeable future.’” Executive Coach Builders, 123 USPQ2d at 1199 (citing Hornby v. TJX Cos., 87 USPQ2d 1411, 1421-22 (TTAB 2008)). Mr. Gray testified that before the nonuse period, around 2011/2012, Respondent began to explore bundling SEA & SKI products with third-party sun care products as a strategy for relaunching the broader line of SEA & SKI sun care preparations.113 See Crash Dummy Movie, LLC v. Mattel, Inc., 601 F.3d 1387, 94 USPQ2d 1315, 1317 (Fed. Cir. 2010) (Board may consider evidence and testimony regarding practices that occurred before or after the nonuse period to infer intent to resume use). Much of this business strategy and related discussions are confidential so we are limited in how we can discuss the evidence. Generally, bundling provides brands leverage to negotiate for retail space. Mr. Gray was in communication with Mr. Mercer, who “owned a company that offered sun care products under the BABY BLANKET trademark”114 and had a longstanding business relationship with Mr. Gray. Prior to and during the nonuse period, Mr. Gray and Mr. Mercer pursued a “bundling” strategy and had discussions with third party companies.115 Their efforts were unsuccessful,116 but in late 2015/early 2016, Mr. Mercer was in discussions with a group of “sun care veterans,” and he approached Mr. Gray by phone about a possible 113 Gray Cross-Exam, 126 TTABVUE 11 (redacted); 127 TTABVUE 73-78, 87, 102 (confidential). 114 Mercer Declaration, 95 TTABVUE 5, ¶¶ 3-4; Mercer Cross-Exam, 130 TTABVUE 32-34; Gray Declaration, 97 TTABVUE 25. 115 Gray Cross-Exam, 127 TTABVUE 73-78, 85, 87 (confidential). 116 Gray Cross-Exam, 127 TTABVUE 73, 78 (confidential) (testifying that conversations with “a number of companies” started moving forward but then “would fall apart”). Cancellation No. 92060205 - 43 - business deal.117 Cross Brands was formed in March 2016 and the company started product development that same month based on a deal in principle with Respondent.118 Respondent and Cross Brands signed a written agreement in May 2016 and Cross Brands resumed use of SEA & SKI for sunscreen preparations in July 2016.119 Petitioner criticizes the testimony of Mr. Gray and Mr. Mercer arguing that the testimony is self-serving and not corroborated by any documentary evidence.120 While the businesses of Mr. Gray and Mr. Mercer will benefit if Respondent is found not to have abandoned its mark, their testimony is consistent. The testimony also is corroborated somewhat by Mr. Martinez who testified that around 2013, when Radiant was ending its relationship with Navajo, there was a “push … to proceed 117 Mercer Cross-Exam, 131 TTABVUE 45-46, 52-53 (confidential). 118 Mercer Cross-Exam, 131 TTABVUE 73-74 (confidential); see also Gray Cross-Exam, 127 TTABVUE 76 (confidential) (discussing how and when Respondent began business discussions with the group that eventually formed Cross Brands). 119 Gray Declaration, 97 TTABVUE 10, ¶¶ 27-28, and Ex. 2 (confidential); Mercer Declaration, 94 TTABVUE 6-7, ¶ 8 (confidential), 95 TTABVUE 7, 11-17, ¶ 10 and Exs. B and D (redacted); Mercer Cross-Exam, 130 TTABVUE 62, 71-72 (testifying that Cross Brands brought SEA & SKI product to the trade show and sold SEA & SKI products); Martinez Declaration, 99 TTABVUE 9, ¶¶ 21-22 (confidential); Petitioner’s Notice of Reliance, 80 TTABVUE 43, (Response to Interrogatory 2). 120 As further support that Respondent lacked an intent to resume use, Petitioner points to the: (1) fact that Respondent did not “even attempt to suggest to the public that it allegedly had any intent (or desire) whatsoever to relaunch the SEA & SKI brand,” Petitioner’s Brief, 138 TTABVUE 14, and (2) 2014 or 2015 dissolution of Radiant, Respondent’s “marketing and sales arm.” Id. at 33. These arguments are unpersuasive. There is no requirement that a mark owner publicly express an intent to resume use of a mark. In addition, Mr. Martinez explained that Radiant went from operating the SEA & SKI business to “being basically a licensee for the SEA & SKI brand without any day-to-day business being conducted.” So Radiant was “dissolved because it was an unnecessary tax burden and [Respondent] could operate its own licensing.” First Martinez Cross-Exam, 136 TTABVUE 20-22. Cancellation No. 92060205 - 44 - back into the market[.]”121 We find Respondent’s witness testimony reliable. Moreover, Mr. Mercer testified that “early on” he and Mr. Gray communicated via telephone, but “[a]s we moved into discussion about pricing and everything else, yes, obviously,” there were written communications concerning the Cross Brands deal.122 Petitioner further argues that Respondent “could not demonstrate with any specificity when such alleged conversations [with Mercer and third parties] occurred, the substance of such alleged conversations, or the parties to the alleged conversations. This is precisely the type of vague, unsubstantiated testimony the Board rejected as intent to resume use[.]”123 The testimony lacks some specifics, but on cross-examination, Mr. Gray identified some brands with which Respondent had discussions. Eventually, discussions led to a signed agreement with Cross Brands in May 2016. A few months before that, Cross Brands started product development based on an agreement in principle with Respondent. The fact that Respondent found a business partner in Cross Brands supports that Respondent was actually engaged in consistent and concrete discussions to resume use of the SEA & SKI mark during the nonuse period. Cf. Parfums Nautee Ltd. v. Am. Int’l Indus., 22 USPQ2d 1306, (TTAB 1992) (“respondent’s intention relative to future conduct was speculative and remote”). 121 First Martinez Cross-Exam, 137 TTABVUE 23 (confidential). 122 Mercer Cross-Exam, 130 TTABVUE 53 (redacted); 131 TTABVUE 53 (confidential). 123 Rebuttal Brief, 149 TTABVUE 26. Cancellation No. 92060205 - 45 - The facts here are distinguishable from the case Petitioner cites, Yazhong Investing, Ltd. v. Multi-Media Tech Ventures, Ltd., 126 USPQ2d 1526, 1538-39 (TTAB 2018). In Yazhong Investing, the petitioner sought to cancel 8 registrations for a range of consumer goods124 and services on the ground of abandonment. The respondent tried to overcome a presumption of abandonment by showing use of its mark during the nonuse period. There was conflicting testimony about whether the mark was in use and no documentary evidence to support sales, which was unusual, particularly for the types of goods and services involved. Id. at 1539. One declarant also testified vaguely about “seeking licensing partners,” id., but there was no corroborating witness testimony and the declarant’s testimony had been directly contradicted on another point. The Board concluded that the respondent’s “efforts [to negotiate a license] were neither consistent nor sustained” and that there was “no credible evidence” to rebut the presumption of abandonment.125 Id. We are also not persuaded by Petitioner’s argument that Respondent licensed the mark because “it was in jeopardy as a result of its nonuse, and in light of Mr. Kaplan’s efforts to relaunch the abandoned brands.”126 In contrast to Linville v. Rivard, 41 USPQ2d 1731 (TTAB 1996), cited by Petitioner, where the defendant hastily licensed the mark to three entities “within months of receiving notice of th[e] cancellation 124 The registrations covered clothing, cosmetics, personal care preparations, bicycles, wagons, strollers, jewelry, watches, paper products, bath linens and bedding, eyewear, cellular phones, and various entertainment services. 125 Respondent also cites two non-precedential cases. These cases are nonbinding and distinguishable for similar reasons. 126 Petitioner’s Brief, 138 TTABVUE 34. Cancellation No. 92060205 - 46 - proceeding,” Respondent did not license the SEA & SKI mark to Cross Brands until more than one and a half years after the institution of this proceeding. Moreover, as discussed, the evidence demonstrates that Mr. Gray and Mr. Mercer were working for some time to resume use of SEA & SKI for a broader range of sun care preparations. On the facts here, we find that Respondent engaged in concrete activities during the nonuse period reflecting an intent to resume use within a reasonable period of time culminating in an actual resumption of use.127 Accordingly, Petitioner has failed to establish by a preponderance of the evidence that Respondent abandoned the SEA & SKI mark for the following goods:  “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”;  “lip balm”;  “lotion for use as a relief from, and preventative for, chapping, skin irritations”; and 127 The parties devote much of their briefs and evidence to whether Respondent’s interest in reformulating SEA & SKI sun care preparations with a “novel technology” supports excusable nonuse. Respondent’s Brief, 145 TTABVUE 14. Respondent’s licensee Cross Brands relaunched SEA & SKI sunscreen without the technology. Accordingly, in finding excusable nonuse we do not rely on Respondent’s interest in such a reformulation. Imperial Tobacco, 14 USPQ2d at 1395 (finding no excusable nonuse based on developing a marketing strategy because the defendant resumed use of the mark without implementing any such strategy); Linville v. Rivard, 41 USPQ2d at 1740, aff’d by Rivard v. Linville, 45 USPQ2d 1374 (“The speed at which respondent moved [to use his mark] after receiving notice of the petition for cancellation and the fact that he has chosen to open his first hair salon at a site which appears to be lacking in the features previously deemed essential, belies respondent’s claim that the failure to [have] taken such steps in the previous five years constitutes excusable nonuse.”). Cancellation No. 92060205 - 47 -  “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light.” 4. Goods for Which There Is a Presumption of Abandonment As addressed above, Petitioner is entitled to a presumption that the SEA & SKI mark has been abandoned for “self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light” and “lotion for use as a relief from, and preventative for, diaper rash.” We focus on the 3-year nonuse period from 2010 to 2013. If Respondent establishes that its nonuse of the mark for these goods is excusable, then it has overcome the presumption that its nonuse of the SEA & SKI mark was coupled with an intent not to resume use. Executive Coach Builders, 123 USPQ2d at 1198. “[I]f the activities are insufficient to excuse nonuse, the presumption is not overcome.” Id. Turning first to self-tanning preparations, Mr. Gray testified that in his opinion, self-tanning products without SPF were “a very dangerous … way to be in the sun” and that he “didn’t agree” with Respondent’s use of the SEA & SKI mark for such Cancellation No. 92060205 - 48 - goods.128 This testimony suggests that Respondent was disinterested in resuming use of the SEA & SKI mark for self-tanning preparations without SPF. Moreover, the testimony of Mr. Gray and Mr. Mercer focuses on resuming use of the SEA & SKI mark for “sun care” and sunscreen products, e.g., products providing protection from the sun’s harmful rays, rather than self-tanning preparations, with or without SPF, that are more cosmetic in nature. In fact, neither Mr. Gray nor Mr. Mercer specifically addressed “self-tanning” preparations in their testimony. On this record, we find that Respondent has not overcome the presumption of abandonment with respect to the SEA & SKI mark for “self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light.” Cf. Imperial Tobacco, 14 USPQ2d at 1395 (abandonment found where marketing strategy developed during the nonuse period was not for the identified goods, cigarettes, but rather “incidental” products). Similarly, Respondent has not shown that its nonuse of the SEA & SKI mark for diaper rash preparations was excusable. Respondent’s evidence and arguments focus on excusable nonuse of the SEA & SKI mark for sun care preparations. Accordingly, 128 Gray Cross-Exam, 126 TTABVUE 23-24. Cancellation No. 92060205 - 49 - Respondent has not overcome the presumption that the SEA & SKI mark has been abandoned for “lotion for use as a relief from, and preventative for, diaper rash.” IV. Conclusion Petitioner has not proven by a preponderance of the evidence that Respondent abandoned the SEA & SKI mark for “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”; “lip balm”; “lotion for use as a relief from, and preventative for, chapping, skin irritations”; and “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light.” Petitioner has established a prima facie case of abandonment of the SEA & SKI mark for the following goods and Respondent has not rebutted the presumption of abandonment: “self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; self- tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light” and “lotion for use as a relief from, and preventative for diaper rash. Decision: The petition for cancellation is:  Dismissed as to Registration No. 841768 for “suntan lotions”; Cancellation No. 92060205 - 50 -  Dismissed, in part, as to Registration No. 2236642 for “suntan lotions; suntan oil; suntan cream; sunblock lotion; and sunblock cream”; “lip balm”; “lotion for use as a relief from, and preventative for, chapping, skin irritations”; and “after sun lotions, namely, skin lotions to moisturize and restore the skin and reduce the harmful effects of sunlight or ultra-violet light”; and  Granted, in part, as to Registration No. 2236642 for “self-tanning sunblock lotions, namely, non-medicated skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light and accelerate or enhance a tan acquired from exposure to sunlight or ultra-violet light and shield the skin from the harmful effects of sunlight or ultra-violet light, and also to function as skin moisturizers; self-tanning lotions, namely, skin lotions which impart a tanned appearance to the skin without the necessity of exposure of the skin to sunlight or ultra-violet light” and “lotion for use as a relief from, and preventative for diaper rash.” Registration No. 2236642 will be cancelled in part as to these goods.